The Senate's Confirmation Process
Rule XXXI of the Standing Rules of the Senate governs the confirmation process in the institution for all presidential nominations (executive-branch nominations and judicial nominations). It stipulates,
“When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees.”
After committee members have completed their consideration of a nominee, they may vote to place his or her nomination onto the Senate’s Executive Calendar. The Executive Calendar is the list of nominations and treaties that are eligible to be considered during executive session. Executive session refers to the Senate’s procedural posture when it considers executive business (i.e., international treaties and presidential nominations). Legislative session refers to the Senate’s posture when it considers legislative business.
Once a nomination is on the Executive Calendar, any senator (not just the majority leader) may offer a motion to proceed to its consideration. According to the Senate’s precedents, “A motion to proceed to the consideration of executive business is in order at any time.”
The motion to proceed to executive business is non-debatable (i.e., senators can’t filibuster it). Consequently, the Senate votes on a motion to proceed to the consideration of a nomination as soon as a senator makes it. By extension, no one senator, or group of senators representing less than a majority of the institution, can object to, or otherwise prevent, its members from debating a nomination on the Senate floor.
The Filibuster & Cloture
Rule XXII empowers a three-fifths majority (typically 60) to end floor debate on a nomination by invoking cloture. In the past, a two-fifths minority (typically 41) could block cloture (i.e., prolong debate or filibuster). Democrats used the nuclear option in 2013 to lower the threshold for invoking cloture on all nominations (other than for the Supreme Court) from a three-fifths majority to a simple-majority vote. Republicans likewise used the nuclear option in 2017 to lower the threshold for invoking cloture on Supreme Court nominations from a three-fifths majority to a simple-majority vote and again in 2019 to speed up the confirmation process by shortening the time allowed for debate after the Senate invokes cloture on presidential nominations.
The standard view is that the ability to filibuster empowers a Senate minority to obstruct the majority. In this case, Democrats prevent Republicans from confirming President Trump’s executive and judicial nominations expeditiously by filibustering them. Implicit in the standard view is that Democrats are unwilling to cooperate with Republicans and therefore act in ways that prevent Republicans from scheduling up-or-down confirmation votes.
Yet opposing actions can only cancel each other out when they are evenly balanced. Absent an even matchup, the actions of the stronger side will eventually overwhelm the actions of the weaker side. In the context of the Senate’s confirmation process, the majority and minority sides (or majority/Republican and minority/Democratic parties) are, by definition, unevenly matched. The fact that the majority has more members than the minority is what makes it the majority in the first place.
The only way to level the playing field between the majority and minority parties inside the Senate is to give the latter a veto over when the former acts. Significantly, this is precisely how the standard view understands the filibuster to operate. It also highlights the consequences of Republicans relying on unanimous consent to schedule executive and judicial nominations for up-or-down confirmation votes.
The filibuster is not a veto. It can therefore never level the playing field between the majority and minority sides in a debate. Instead, it merely grants a senator (or senators) the opportunity to speak for as long as he or she is able. Using it to obstruct the majority on a systematic basis requires senators in the minority to expend considerable effort to succeed. As such, the filibuster cannot obstruct a presidential nomination indefinitely because no two sides in a debate can be evenly matched in terms of the effort their members are willing to expend. One group of senators must always prevail at the conclusion of a debate. Whichever side that does is, by definition, the side with more members. In situations where the minority prevails, its members successfully altered the terms of the debate such that a majority of senators were unwilling to expend the effort required to prevail in it. In other words, the minority deprived the majority of a majority of the Senate’s members.
Gridlock, properly understood, only arises in those situations in which both majority- and minority-party senators are unwilling to expend the effort required for their side to prevail. In such cases, neither side acts to achieve its goals. Gridlock is thus caused by inaction, not action. Amidst such inaction, it is misleading to suggest that a minority acted in ways that prevented the majority from acting. Rather, both the minority and the majority refrained from acting. In all other situations, the actions of senators on one side or the other lead to definitive outcomes.
Filibusters & Confirmation Votes
Understanding why the filibuster is not a veto requires a closer examination of how the procedure operates in practice. Of course, a senator may temporarily delay his or her colleagues from voting by speaking on the floor. As long as a senator has the floor, the Presiding Officer may not put the pending question to a vote. Senate precedent stipulates,
“When there is a debatable matter before the Senate and debate is not limited, a Senator who has been recognized may proceed without interruption. Under those circumstances, a Senator may keep the floor as long as he or she remains standing and continues to debate.”
Senators cannot prevent their colleagues from voting in perpetuity, strictly speaking, because they cannot speak indefinitely. This is because of the physical and opportunity costs filibustering senators must bear, as well as the procedural limitations in the Senate’s existing rules and practices (e.g., Rule XIX). When a senator is no longer able to speak, he or she has no choice but to yield the floor. At that point, the Senate votes on the underlying question unless another senator seeks recognition and then speaks for as long as he or she is able. While the length of the delay in the Senate’s business is proportional to the number of senators who participate in a filibuster, there is no point at which it gets delayed indefinitely. This is because individual senators can only speak for a finite period of time.
When no senator seeks recognition (i.e., no longer wants to, or is able to, speak), the Presiding Officer must put the question (i.e., call a vote). According to Senate precedent,
“When a Senator yields the floor, and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.”
Technically, a Senate majority is unable to order the Presiding Officer to call an up-or-down confirmation vote. Unlike in the House, where a majority can end debate and move to an up-or-down vote whenever it so chooses, Senate majorities are precluded from doing so. Senate precedent stipulates,
“There is no motion in the Senate to bring a matter to a vote. In the absence of either cloture or a statutory limitation of debate or a unanimous consent agreement, debate may continue indefinitely if there is a Senator or a group of Senators who wish to exercise the right of debate.”
The major exception to this limit on the majority’s power in the confirmation process is the cloture process specified in Rule XXII. First adopted in 1917, cloture empowers a super-majority of the Senate to end debate over the objections of a minority of its members who would like to continue speaking on (or filibustering) the underlying question. The rule requires three-fifths of senators duly chosen and sworn (typically 60) to vote to invoke cloture (i.e., end debate). By extension, it also empowers 41 senators to perpetuate debate by voting not to invoke cloture. Both parties’ use of the nuclear option has lowered the number of votes needed to invoke cloture on presidential nominations to a simple majority and raised the number of votes needed to perpetuate debate to two less than a simple majority (assuming the Vice President will vote to confirm nominees when the Senate ties on recorded votes).
The Politics of Effort
Notwithstanding Rule XXII, a committed majority of senators willing to expend the effort required to confirm the president’s nominees must eventually prevail over a minority of senators, ceteris paribus. Such a dynamic governed the decision-making process in the Senate prior to 1917. Throughout the nineteenth century, Senate majorities routinely passed legislation and confirmed presidential nominees over the minority’s objections and in the absence of a rule to end debate. The filibuster did not operate like a veto during this period because it was costly for senators to filibuster. The only exception to this general rule was at the very end of a Congress when the limited time left to legislate meant that the physical costs to filibuster were lower.
Thinking on the filibuster has changed considerably since 1917. Today, most academics and practitioners assume that the costs of breaking a filibuster are greater than the costs of filibustering. In doing so, they are implying that the majority faces greater costs to act than the minority while conceding that “to act” for the former means “waiting” whereas it means “speaking” for the latter. If such claims are taken at face value, the filibuster has indeed morphed into a veto in recent decades.
Yet it is illogical to assume that filibustering requires more effort than not filibustering. Common sense suggests that giving a speech on the Senate floor for hours is more daunting a prospect to a senator than waiting nearby while his or her colleague delivers a speech that lasts for hours. Both senators face opportunity costs in this scenario. For example, they each want to see action on numerous legislative priorities in a given Congress. They also face significant demands on their time associated with fundraising and performing constituent services. Most senators also desire to spend as little time in Washington as possible. Yet only the filibustering senator bears the extreme physical costs associated with his or her standing up and talking for hours, if not days, without a break. Filibustering senators also face exposure to nation-wide embarrassment because their speech is now televised. This suggests that the opportunity costs of waiting out filibusters do not impact senators’ cost-benefit calculations as predicted by academics and practitioners.
Furthermore, the Senate’s current Republican majority has complained recently that the Democratic minority unnecessarily obstructed President Trump’s executive and judicial nominations. However, Republicans routinely refused to make the Democrats expend effort to do so, presumably because they did not want to expend the effort required to do so themselves. The result was that the Democrats’ position in favor of delay had the support of a majority of the Senate’s members (if not a super-majority).
Had Republicans instead been willing to expend effort to make it harder for the Democrats to obstruct, it is likely that they would have prevailed in shortening the time it took to confirm most nominees over the last 4 four years. This is because the Democrats appeared unwilling from the very beginning of Trump’s presidency to expend significant effort simply to delay the otherwise certain confirmation of Trump’s nominees. When asked early in 2017 if it was realistic to expect Democrats to continue delaying the confirmation process after Republicans kept the Senate in an around-the-clock session for just two days, Chris Murphy, D-Conn., one of the senators who was filibustering the president’s nominees, answered, “I’m exhausted. And so it is hard to understand how this pace continues.”